USTR “Limitations and Exceptions” Proposal Laughably Weak; Time To Get Biblical (Prov 22:15) On Their Ass.

Back in the beginning of July, the USTR made a major policy and rhetorical shift by actually acknowledging the importance of “limitations and exceptions” in copyright. As I noted at the time, this represented a major victory for opponents of copyright maximalism given the USTR’s previous refusal to even acknowledge the validity of limitations and exceptions. While applauding USTR’s positive change in direction (always make it easy for people to agree with you!), I also noted that this change was the direct result of ACTA crashing and burning and the recognition by USTR that any trade agreement must “at least pay lip service to the vital role of limitations and exceptions in the copyright ecosystem” if it expects ratification. So while this concession created opportunity to start turning back the endless erosion of personal rights by the incoming tide of copyright maximalism, I warned that “the actual language of the treaty might still undermine limitations and exceptions in practice while pretending to acknowledge their importance on the surface.” Accordingly, it would still fall to civil society to “help USTR move down the path of wisdom by refining the text” and prevent it from backsliding into its previous position that “limitations and exceptions” is just a fancy way to say piracy.

Last week, the USTR proposal got leaked. Unsurprisingly, it turns out USTR still needs some hand-holding and education on what it genuinely means to embrace the value of limitations and exceptions. Rather than get angry, however, we must approach USTR with the kind of “tough love” advised by Proverbs 22:15. Or, in other words, we just need to get Biblical on their ass — again.

I explain below . . . .

Last week, Knowledge Ecology International (KEI) published the leaked text of the U.S. proposal and analysis of what other countries are proposing. My colleague Rashmi Rangnath has a detailed analysis of the proposal and where it falls short over at the Public Knowledge blog. Perhaps unsurprisingly, the U.S. proposal (backed by the equally hawkish on copyright Australia) proposes the bear minimum necessary to comply with already existing international norms and agreements. The USTR proposal, in other words, is calculated to do the least possible to protect user rights while still claiming sufficient recognition of limitations and exceptions to avoid being labelled a human rights violation.

Nor is it the case that the U.S. is bravely pushing the envelope on Internet freedom while other countries staunchly resist. To the contrary, as KEI analysis of leaked documents shows, the U.S. still remains the most pro-Copyright Maximalist party in the negotiations. The majority of countries want far greater protection for the public.

This is not surprising. Remember, the U.S. is not moving down the path of wisdom willingly. It is being dragged kicking and screaming. To return to our Biblical theme, Ron Kirk’s reaction to civil society requests to moderate copyright maximalism have echoed Exodus 5:2 “Who are these civil society people that I should listen to them? I know not these ‘limitations and exceptions.'” Now, having had a few plagues land on his head in the form of the ACTA rejection, we fast forward to Exodus 10:8: “Yes I shall acknowledge limitations and exceptions; which ones?” And, like Pharaoh, we can expect some backlash when we say we want all our rights protected (Exodus 10:10-11). We may also expect the chorus from Hollywood to complain that we are “never satisfied” and to go all Exodus 14:5. “What is it that we have done, even acknowledging there might be value in limitations and exceptions.”

For fellow activists, this is no cause for despair. These negotiations are an iterative process and it will require many applications of the wisdom of Proverbs 22:15. “The spirit of USTR is bound with foolishness, but the rod of correction shall drive it far from them.” In this case, the “rod of correction” comes in the form of continued pressure that forced USTR to make the initial concessions in the first place. The combination of Congress breathing down their neck and the specter or a negotiated agreement being rejected as a consequence of overreach. At the same time, an agreement that genuinely embraces limitations and exceptions is much more likely to get approved by trading partners and get ratified by Congress and our trading partners. It will also save a lot of time in useless negotiation. How many more ACTAs, oh USTR, must you negotiate before you learn wisdom? How long, oh other U.S. trading interests, will you allow Hollywood to drive the crazy train and delay trade agreements you want and need?

Someday, we will hopefully get to the Isaiah 1:18 and all reason together. Until then, we should consider the words of Deut 31:6. Be strong and of good courage, for surely we will kick ass.

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